Joseph Dwinell v. Zoo New England (SPR 20211328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2021 SPR21/1328 Cynthia Mead Executive Vice President of External Affairs and Programing Zoo New England 1 Franklin Park Road Boston, MA 02120 Dear Ms. Mead: I have received the petition of Joe Dwinell appealing the response of the Commonwealth Zoological Corporation (Corporation), d/b/a Zoo New England. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 20, 2021, Mr. Dwinell requested the Corporation’s “complete payroll for calendar year 2020 with every employee listed by first name, last name, title, gross and base pay all in Excel.” The Corporation provided a response on May 5, 2021. Unsatisfied with the Corporation’s response, Mr. Dwinell petitioned this office and this appeal, SPR21/1328, was opened as a result. The Public Records Law The Public Records Law applies to all records ...made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32… G. L. c. 4, § 7(26). The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Cynthia Mead SPR21/1328 Page 2 June 10, 2021 The Corporation’s May 5th Response On May 5, 2021, the Corporation asserted, “Zoo New England is a non-profit 501(c)(3) organization. [The Corporation] attached a copy of a 2011 opinion from the Secretary of the Commonwealth’s office clarifying our status for a reporter who had filed a FOIA request to obtain ZNE employee salary data. It should answer [Mr. Dwinell’s] questions related to this request. [The Corporation] does not disclose our employees’ salary information out of respect for our employees' privacy. [The Corporation’s] 990 is publicly available, and includes required salary disclosures.” Current Appeal In Mr. Dwinell’s May 26, 2021 appeal, he stated, “Zoo New England is declining the Herald's request for the quasi-state agency's complete payroll. This comes as the state Senate has just adopted Sen. Bruce Tarr's amendment requiring all quasi-state agencies to do just that. Share their payrolls with the Comptroller's Office for the Open Checkbook.” In addition, Mr. Dwinell indicated his appeal was based on the Corporation’s “denial because they are subsidized by taxpayers.” The Corporation’s Status The Supreme Judicial Court has developed a five factor test to determine whether an organization is considered a “public entity” for purposes of the Public Records Law. See Massachusetts Bay Transp. Auth. Retirement Bd. v. State Ethics Comm’n (Board I), 414 Mass. 582, 589-91 (1993) (outlining the five-factor test); see also Globe Newspaper Co. v. --------------------- Massachusetts Bay Transp. Auth. Retirement Bd. (Board II), 416 Mass. 1007 (1993) (applying the test in the context of the Public Records Law). The five factors are as follows: 1) the means by which the entity was created; 2) whether or not the entity performs an essentially government function; 3) whether or not the entity receives or expends public funds; 4) the involvement of private interest; and 5) the extent of control or supervision exercised by government officials, agencies, or authorities over the entity. Board I at 587. The five factors of this test are cumulative, and no one factor is dispositive. Id. Creation of the Entity The first factor considered in this analysis is the means by which the entity was created. This factor requires the presence of some form of legislative or administrative action underpinning the creation of the entity. Id. at 587, 589.

Cynthia Mead SPR21/1328 Page 3 June 10, 2021 Performance of an Essentially Governmental Function The second factor in this analysis concerns whether the Corporation performs an “essentially governmental function.” See Id at 590. Receipt and Expenditure of Public Funds The third factor examines whether the entity receives or expends public funds. The fact that the entity receives a substantial part of its funding from governmental funds weighs towards a finding that it is a public entity. However, the Supreme Judicial Court has stated that “receipt by an entity of substantial funding from a State agency does not necessarily indicate that the entity is a public instrumentality.” Id. Thus, this factor alone is not dispositive. Involvement of Private Interests; Control and Supervision The final two factors in this analysis relate to the extent of any involvement, control, or supervision exercised by governmental officials. The Supreme Judicial Court has stated that the five factors of the public entity test are to be balanced, and no one factor is dispositive. Board I at 587. On June 1, 2021, the Corporation provided a supplemental response with additional information and details. The Corporation explained in the June 1st response “attached to this email response the Zoo New England Public Entity Status Letter dated June 15, 2011 pertaining to the decision that the Commonwealth Zoological Corporation d/b/a Zoo New England is not a public entity for the purpose of the Public Records Law (SPR11-090). We previously provided the letter to the appealing party.” Upon review, it is unclear whether there has been any change of circumstances of the Corporation since the 2011 determination. The Corporation must provide additional information with regard to the five factors discussed above. Conclusion Accordingly, the Corporation is to provide Mr. Dwinell with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Cynthia Mead SPR21/1328 Page 4 June 10, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Dwinell Brooke Wardrop